Senate Momentum Growing for Adding FCC 2.5 GHz License Grant Authority to CR

Interest is still high in both the House and Senate in including a temporary restoration of the FCC’s auction authority in a continuing resolution to extend federal appropriations past the end of FY 2023 Sept. 30 (see 2309190001), but some on and off Capitol Hill now believe attaching the narrower 5G Spectrum Authority Licensing Enforcement Act (S-2787) is a more viable option for breaking the mandate logjam. Lobbyists believe the chances S-2787 will appear in a Senate-side CR improved considerably after the chamber passed the measure Thursday via unanimous consent.

The prospects for a CR passing both chambers before federal appropriations expire the night of Sept. 30 remained dim Friday. Senate Majority Leader Chuck Schumer, D-N.Y., set a Tuesday night vote on invoking cloture on a motion to proceed to the Securing Growth and Robust Leadership in American Aviation Act (HR-3935) as the shell bill for a coming CR. That gives the Senate a leg up in CR talks with the House, as the latter's timeline for teeing up their own proposal remained in limbo Friday amid continued revolt by some members within the House GOP’s most conservative flank. Speaker Kevin McCarthy, R-Calif., plans to push for House passage of all 11 remaining appropriations bills this week; the Rules Committee was teeing up four of the measures Friday, including ones covering the Agriculture and Homeland Security departments.

S-2787 sponsor Sen. John Kennedy, R-La., told us before the measure’s Senate floor action that he’s not fully opposed to attaching the bill to a CR but is unenthusiastic about it because “the process” for putting a CR deal together “is a little convoluted right now.” S-2787 would give the FCC authority for 90 days to issue T-Mobile and other winning bidders the licenses they bought in the 2.5 GHz band auction last year (see 2309140051). The measure would settle a dispute about whether the FCC’s authority to award licenses under Communications Act Section 309(a) is sufficient to complete the 2.5 GHz transfers given the auction mandate's lapse. Commissioner Brendan Carr and others argue 309(a) gives the FCC plenty of authority to act (see 2307070042).

Kennedy told us T-Mobile hadn’t contacted him encouraging him to attach S-2787 to a CR. The House should “move quickly to send this bill to the president’s desk so that the job providers who depend on wireless communications in Louisiana and across America can continue to support rural economies,” Kennedy said Friday. FCC Chairwoman Jessica Rosenworcel, who cited the March expiration as the reason the commission is withholding the 2.5 GHz licenses, said during a Tuesday Senate Appropriations Financial Services Subcommittee hearing she wouldn’t object to Hill action on S-2787.

Senate Minority Whip John Thune, R-S.D., said attaching S-2787 to a CR would be “an easier political lift” in the Senate than pursuing a temporary renewal of the FCC’s full auction authority. “We’ll see” if CR talks “will bear” S-2787’s inclusion in a package, but much of the situation remains uncertain, he told us. “The spectrum issue’s got to be dealt with at some point,” given the mandate’s expiration more than six months ago. Thune and Senate Commerce Committee ranking member Ted Cruz, R-Texas, urged the FCC in August to reconsider withholding the 2.5 GHz licenses (see 2308140073).

Rounds, Democratic Interest

Republican Senate aides said S-2787 could be an attractive alternative because it’s more narrowly defined and wouldn’t raise objections among staunch DOD backers who object to legislative moves that could lead to sales of spectrum on the 3.1-3.45 GHz band before the department releases its report on the impact of repurposing the frequency (see 2308070001). Sen. Mike Rounds, R-S.D., whose objections to an early 3.1-3.45 GHz sale led to the remit’s expiration (see 2303090074), told us he wouldn’t object to including a 2.5 GHz-specific authority grant. “I wouldn’t have a problem with that, and I’ve already told” Kennedy, Rounds said.

Senate Commerce Chair Maria Cantwell, D-Wash., said she backs S-2787 and a temporary renewal of the FCC’s full auction mandate but doesn’t have a preference on which option would be better as an addition to a CR. “I think we’re still trying to coalesce around” a consensus solution, she said. Senate Appropriations Financial Services Chairman Chris Van Hollen, D-Md., told us he would also support attaching S-2787 to a CR but only as a “fallback option. My focus is on restoring the FCC’s authority to conduct auctions, which would solve both problems. I don’t want to give up on that yet.”

There’s comparatively little groundswell in S-2787’s favor in the House, where telecom-focused leaders’ priority remains squarely on a temporary auction reauthorization, aides said. Lobbyists noted Rep. Anna Eshoo, D-Calif., as a strong booster for attaching S-2787 to a CR. Eshoo’s office didn’t comment.

House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., told us she would have to “look at” S-2787 and any temporary overall authority restoration proposal before she could take a position, saying “we’re still working through a lot of issues related to the CR.” She doesn’t anticipate the House will act soon on the committee-cleared Spectrum Auction Reauthorization Act (HR-3565), which would bring back the FCC’s mandate through Sept. 30, 2026 (see 2305240069).

T-Mobile “stands ready to expand service across America,” T-Mobile Vice President-Federal Government Affairs Tony Russo tweeted Friday in response to S-2787. The carrier otherwise declined comment Friday.

'Political Hurdles'

Industry officials told us a provision instructing the FCC to award licenses already auctioned would likely be easier to get through Congress quickly than resurrecting the auction authority. Remit restoration faces “a lot of political hurdles and waiting on it would almost certainly delay things” for T-Mobile, said Digital Progress Institute President Joel Thayer. “Things are looking pretty good for" S-2787 “given the results of the hotline” that allowed the bill's UC passage, but “it still has a long way to go.”

Anything Congress does to “to break the logjam would be helpful,” emailed TechFreedom General Counsel Jim Dunstan. How the provision is worded matters. “If it's just an ‘order’ from Congress to the FCC to process the applications, that doesn't legislatively overrule" Rosenworcel's “current interpretation that it lacks authority to actually issue the licenses so long as” the auction authority “is still expired,” Dunstan said: “It seems to me that to overcome [her] reticence to move forward, Section 309 needs to be formally amended to make clear that [the sales mandate] only applies to the auction process, and that 309(a) authorizes the FCC to issue licenses that have been granted pursuant to a completed auction.”

One “wrinkle” is that “piecemeal authorization” of license assignments “could undermine some of the urgency to reach a longer-term deal on auction authority,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “The 2.5 GHz situation is so absurd that it could spur action on a spectrum bill, so members looking for a more fulsome bill may not want to exhaust that urgency fixing only this narrow issue.”

“It’s an easier lift but given the state of Congress, bets that something will” happen “are running uphill,” said New Street’s Blair Levin, former FCC chief of staff. “Right now it looks like, given the state of Congress, this could be a solution that helps get those licenses into use,” said Kristian Stout, International Center for Law and Economics innovation policy director.

“Consideration in a continuing resolution for the primary benefit of just one company is not surprising and a sad reflection of the inability of Congress to achieve the simple task of providing the FCC with auction authority, an action that benefits an entire industry,” said LightShed’s Walter Piecyk.

“Movement on 2.5 is a good step, but it's unfortunate we have to accept this continuation of a piecemeal response as the process for moving forward on spectrum efficiency over a true free-market tool like spectrum auctions,” said Shane Tews, American Enterprise Institute nonresident senior fellow.